Social Media Evidence: What You Can’t Use Won’t Help You -- Practical Considerations for Using Evidence Gathered on the Internet

by Michael R. Holt and Victoria San Pedro

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“My life is an open book.” These words, used long before the advent of the Internet, sum up the impact of what is now known as “social media.” Social networking is an exploding phenomenon. It not only impacts our daily lives, but legal matters as well. And if used wisely, it provides a treasure trove of information for counsel on either side of a dispute. Thanks to sites like Facebook, Twitter, LinkedIn, and Pinterest, to name just a few, we are now privy to a limitless array of data. This includes personal comments, messages, photographs, and information such as a person’s hometown, date of birth, address, occupation, ethnicity, height, relationship status, income, and education.

In the span of just a few minutes, one gains insight into someone’s state of mind by scanning tweets or posts. Or they can track the physical condition and activities of a party by viewing his or her photographs and activities. This information can be useful for a variety of reasons ranging from mediation to impeachment or rehabilitation. As a result, information shared through social networks — social media evidence — has assumed a prominent role in a variety of litigation contexts and has taken on particular importance in criminal matters, family law, personal injury cases, criminal law, business torts, and employment disputes.

Social networking is, relatively speaking, a fairly new concept. Emerging approximately 10 years ago with the development of MySpace and LinkedIn in 2003,1 social networking sites have grown from a few thousand users to more than a billion.2 These sites have become a preferred form of electronic communication, surpassing email in 2009.3 The world’s population now spends more than 110 billion minutes on social networks and blog sites.4 As of March 31, 2011, 9,370,620 Floridians had registered for a Facebook account, which is approximately half of the state’s population.5 Based on these statistics, it is inevitable that the social media accounts of at least one person involved in a dispute will have potentially relevant and discoverable information. But finding an online “smoking gun” does not guarantee that it will ever find its way into a courthouse or before a jury.

In the wake of social media’s explosion as a communication device, judges and juries throughout Florida are being asked to evaluate the information provided by it in their deliberations. While the Florida Rules of Civil Procedure were amended in 2012 to provide guidelines pertaining to the discoverability of electronically stored information (ESI),6 the Florida Evidence Code is still silent on the topic of the admissibility of this potential evidence. Now that Florida’s rules of procedure and its courts have confirmed that social media evidence is discoverable,7 parties are calling upon courts to answer the question of whether this evidence is admissible, and under what circumstances.

This article examines some of the challenges counsel encounter when dealing with social media evidence, from location and preservation to trial presentation. This includes obtaining information directly from social media sites, such as Facebook, and difficulties presented when key evidence exists only on the Internet Archive. The article also discusses unique evidentiary concerns posed by social media evidence and how courts have dealt with those challenges thus far. Ultimately, by following the proper procedures in finding, preserving, and presenting social media evidence, attorneys can ensure that this key material reaches the jury.

Finding and Preserving Social Media Evidence Preserving social media evidence is just as critical as its presentation. The gathering process can begin within minutes of an attorney receiving a client inquiry or a new assignment. A brief Internet search can quickly assist counsel in finding potentially powerful evidence supporting or refuting a claim. Assuming that the website is “publicly available,”8 preservation of the content becomes important. Preservation involves printing the home page of the website along with screen shots.

Although social media evidence might be a fairly new concept, the rules of procedure can help counsel preserve it. If the opposing party has some direct affiliation with the site, spoliation letters and/or motions to preserve are appropriate. These devices can ensure that opposing parties do not delete or alter social networking sites, online blogs, or any other potentially useful accounts. Individuals who have potentially damaging information stored on their social media accounts may be quick to alter or destroy that information after being contacted regarding the websites. This conduct opens up a host of issues which are beyond the scope of this article.

Parties may also obtain social media information through traditional discovery. Interrogatories should ask the respondent to identify all websites that he or she uses to communicate with other individuals; the name, account, or user name information associated with that website; the names of all individuals who have access to that account; the last time the account was accessed; and the individual’s email addresses, phone number, home address, and other typical biographical information. Likewise, requests for production of this information can seek printouts evidencing each account and copies or screen shots of all photographs and messages included within the account.

• A Word About Subpoenaing Facebook: Exemplary Futility — Parenthetically, one might wonder why a litigant would send written discovery to an opposing party when third-party discovery might work just as well or perhaps even better. The classic example is Facebook, on which users post massive amounts of personal information. Under the Stored Communications Act,9 however, Facebook may not disclose the contents of an account pursuant to a subpoena or court order to any nongovernmental entity. Facebook describes its user content as messages, timeline posts, and photos.10 Therefore, Facebook will only provide and preserve user content in response to a valid law enforcement request.11

Facebook will provide “subscriber information,” but not user content, pursuant to a lawful subpoena.12 To ensure compliance, the party seeking the information must establish that the requested information is indispensable to the case and not within the party’s possession.13 Additionally, Facebook requires that it be served with a valid California or federal subpoena.14 It further requires that out-of-state subpoenas be domesticated in California and personally served on Facebook’s registered agent.15 Parties must provide Facebook with the user’s email address, Facebook user ID (UID), and vanity URL.16

Simply providing a user’s name, birthday, and location will not allow Facebook to correctly identify the user’s account.17 The information should be propounded upon Facebook’s registered agent, along with a processing fee.18 To ensure that Facebook complies, limit the subpoena to the following categories of information: name, length of service, credit card information, email address(es), and a recent login/logout IP address(es), if available. Facebook will reply to your request typically within 30 days.19

• The More Practical Way of Obtaining Social Media Evidence — One can avoid the many aforementioned hurdles by obtaining a complete history from the user. A simple click of a button can easily retrieve a complete copy of any personal data kept on Facebook. Additionally, parties and their counsel may contact Facebook and request a copy of the personal data.20 Alternatively, Facebook users may download a copy of their personal data by selecting Account Settings, General, and Download a copy of your Facebook data, which is located at the lower left-hand corner of the main content.21

This activity log includes a user’s timeline information, posts, messages, photos, and more.22 The activity log also includes information that will be helpful in establishing the admissibility of the evidence; for example, it logs the IP address used when logging into or out of Facebook. Using the IP address, an expert witness will be able to identify the physical address from which the posts were made, thereby establishing the party posting the Facebook item.23

• Using the Wayback Machine —The Internet Archive is a website that provides access to a digital library of Internet sites and other cultural artifacts in digital form.24 The Internet Archive has created a service known as the “Wayback Machine” that permits a person to surf more than 150 billion pages stored in the Internet Archive’s Web archive.25 A visitor to the Wayback Machine can type in a website address, select a date range, then surf on an archived version of the Web.26 The Internet Archive site captures past images from websites, and then creates an archive of how websites look over time.27

The Internet Archive would prefer to have parties’ stipulate to the authenticity of the Internet printouts. The nonprofit organization does, however, provide affidavits to corroborate the authenticity of its printouts.28 As one might imagine, this can prove extremely useful when litigants change the online content of a website, particularly if this occurs after a dispute or initiation of a lawsuit.

Florida courts appear reluctant to introduce Wayback Machine documentary evidence without proper testimony explaining how the machine works. For example, in St. Luke’s Cataract & Laser Inst., P.A. v. Sanderson, 2006 WL 1320242 (M.D. Fla. May 12, 2006), the plaintiff attempted to offer printouts from the Internet Archive website to prove how two other websites looked at various times in the past.29 The U.S. District Court for the Middle District of Florida ruled that the plaintiff would need to present evidence from an Internet Archive official with personal knowledge of how the archive worked.30

The court found that the plaintiff failed to meet the requirements for authentication under Fed. R. Evid. 901, explaining that two affidavits from the plaintiff’s employees did not sufficiently establish how the Wayback Machine works.31 The plaintiff also contended that it submitted a certified copy of an affidavit from the administrative director of Wayback Machine used in an unrelated matter, which was sufficient to authenticate the printouts plaintiff sought to admit in the case.32 The court disagreed.

Notably, the Wayback Machine usually does not archive copies of Facebook pages. However, should counsel attempt to introduce other website evidence, it would be prudent to obtain the affidavit executed by a director of the Internet Archive that would aid in the foundational aspects of admissibility of the evidence. Without the affidavit or an expert with knowledge as to how the Internet Archive works, the proponent of the information risks exclusion.

Presenting Social Media Evidence While numerous Florida courts recognize that social media evidence is discoverable,33 the admissibility of this information is not automatic. The primary concerns dealing with the admissibility of social media evidence center around the authenticity of the evidence and its relevancy.

• Authentication — The Florida Evidence Code requires the proponent of an item to produce evidence supporting a finding that the item is what its proponent claims it to be.34 Authentication is a condition precedent to admissibility.35 The major concerns surrounding the authentication of social media evidence is that there is little certainty that the post is what it purports to be. These concerns stem from the risks of anonymity and fraudulent presentation of identity present with electronic evidence.

Most noteworthy are the concerns that the declarant is not in fact who posted or transmitted the message. For example, a declarant might claim that someone else accessed his or her account and sent the messages under his or her name, thereby damaging the authenticity of this evidence. Many fear that because the evidence is electronic, it can be easily manipulated, thereby misrepresenting what was actually posted. Additionally, not all posts on a social media account are made by the user. And the “tagging” phenomenon36 establishes additional difficulties regarding authenticity. Some courts appear uncomfortable and highly skeptical of the admissibility of social media evidence.

In Florida, however, as long as proponents present sufficient evidence for a reasonable juror to find that the item is genuine, the authentication threshold is met under F.S. §90.901. Therefore, proffering parties need not prove each step of creation in order to guarantee its authenticity. While Florida Evidence Code §90.901 does not, like its federal counterpart, provide a nonexhaustive list of how parties may authenticate evidence,37 established Florida precedent holds that parties may employ several methods, including a witness with personal knowledge, through distinctive characteristics, or self-authentication.38

• Personal Knowledge — The most commonplace and traditional form of establishing authenticity is through the testimony of witnesses who personally know of its authenticity.39 These witnesses may testify that an item is what it purports to be. In application to social media, parties can establish that the photograph or status is in fact a post or picture either of them, or taken by them. In fact, Facebook alleges that its representatives are not required to testify at trial since an “account owner, or any person with knowledge of the contents of the account, can authenticate account content.”40 When parties deny making the post, courts have been reluctant to admit the piece of evidence merely because it is identified with the person’s name and photograph. Nonetheless, when witnesses can identify the person making the posts, the evidence is generally admissible.41

In U.S. v. Phaknikone, 605 F.3d 1099 (11th Cir. 2010), the 11th Circuit held that the district court abused its discretion in admitting the defendant’s MySpace profile page, subscriber report, and photographs to prove that he committed a string of bank robberies because the material was inadmissible character evidence under Fed. R. Evid. 404.42 The opinion details a thorough description of the prosecution’s efforts to introduce the MySpace page into evidence.

To do so, the prosecution called the defendant’s co-conspirator to the stand.43 While on the stand, the co-conspirator established that the defendant had a MySpace account and identified the defendant as the person pictured in the posts.44 Upon this testimony, the district court admitted the photograph of the defendant but not the profile page or subscriber report.45 Soon thereafter, the government called a MySpace employee to the stand who laid the foundation for the subscriber report.46 The district court admitted a redacted version of the subscriber report, which included the defendant’s profile pictures, username, location, and email address.47 The 11th Circuit ultimately affirmed the defendant’s conviction and sentence, finding that the government had sufficiently established its modus operandi wholly apart from the MySpace evidence. Based on the foregoing, it is apparent that, at a minimum, social media evidence can be authenticated by personal knowledge.

Once again, in U.S. v. Lebowitz, 676 F.3d 1000 (11th Cir. 2012), the 11th Circuit dealt with the admissibility of MySpace evidence, namely, the admissibility of Internet chat printouts. The defendant, who was convicted by a jury of producing child pornography and attempting to entice a child to engage in unlawful sexual activity, claimed that admission of the printouts violated the authentication requirement of Fed. R. of Evid. 901.48

In Lebowitz, the prosecution introduced the chat printouts during the direct examination of the victim.49 The victim testified that he printed out the chats, and that the printouts accurately reflected the messages between himself and the defendant.50 While the victim could not establish the specific information as to how the printouts were created, the 11th Circuit held that the prosecution sufficiently established its prima facie case that the proffered evidence is what it purports to be, leaving the ultimate determination of admissibility with the jury.51

Since F.S. §90.901 mirrors Fed. R. Evid. 901, the previous cases are instructive in establishing the proper procedure for offering social media evidence into evidence. First, counsel must identify a witness who can establish that the item is what it purports to be and has personal knowledge of the item. Second, the relevance of the social media evidence must be established during the witnesses’ direct examination. Finally, counsel should request that the witness identify the item and establish the witness’ personal knowledge of the item, and whether the exhibit accurately reflects what the witness identifies as Mr. Doe’s Facebook page. Once the foregoing predicate is laid, counsel should offer said exhibit into evidence.

• Distinctive Characteristics — Counsel may also establish the authenticity of social media evidence through its distinctive characteristics. As remarked by the Florida Supreme Court, authentication of evidence may include examination of its appearance, contents, substance, internal patterns, or other distinctive characteristics, such as barcodes, serial numbers, or signatures, in conjunction with the circumstances.52 Therefore, it would aid counsel in offering social networking items into evidence if the items display distinctive characteristics that can be readily identified by the witness.

In 2011, in U.S. v. Benford, 479 F. App’x 186 (11th Cir. 2011), the U.S. Court of Appeals for the 11th Circuit held that a district court did not abuse its discretion in admitting two photographs from the defendant’s MySpace page.53 The prosecution alleged that the photographs depicted the defendant posing with two pistols charged in the indictment.54 During the trial, the government elicited testimony from an ATF agent identifying one of the pistols in the picture as the same type of pistol found at the defendant’s residence.55 He further testified that the guns in the second photograph had markings consistent with that type of pistol.56 The 11th Circuit held that the photographs were admissible. The 11th Circuit distinguished the case from Phaknikone in that the photos to be introduced specifically depicted the weapons charged in the indictment and, thus, not extrinsic evidence.

While the character implications of the aforementioned ruling are of value, the admissibility of the evidence, which was contingent upon the identification of the weapons therein, provides insight to future litigants. When photographic evidence from a social networking site presents distinctive characteristics, such as the guns in the photo, counsel should elicit testimony from witnesses regarding the distinctive characteristics as further evidence of the item’s authenticity.

• Self-authenticating Documents — Pursuant to F.S. §90.902, certain classes of documents can be admitted into evidence at a trial without proof of authentication, as the documents are considered self-authenticating. The Florida Evidence Code lists a variety of documents that are classified as self-authenticating, including public records and newspapers, among others. Facebook takes the position that its websites are self-authenticating.57 However, Florida courts recently held that websites are not self-authenticating documents,58 therefore, although no Florida court has explicitly held that a social media website is not a self-authenticating document, a Florida court would likely also find that a social media website is not a self-authenticating document.

• Expert Witness Testimony/Using Internet Consultants — Other commentators suggest that the use of Internet consultants can enhance the odds of successfully admitting social media evidence.59 A survey of Florida case law on the use of “Internet consultants,” however, reveals that the use of these personnel is not as prevalent as one might imagine.60

Nonetheless, it appears as though Florida courts are comfortable with the use of Internet consultants to establish the authenticity of websites.61 For example, in Tiffany (NJ) LLC v. 954JEWELRYMAX.COM, No. 12-23518-CIV, 2012 WL 4896644 (S.D. Fla. Oct. 15, 2012), the court considered an Internet consultant’s testimony as to how he was able to retrieve information of the defendant’s website as well as copies of what the consultant was able to retrieve from the Internet.62 In Tiffany, the consultant attempted to purchase counterfeit Tiffany’s products, which were available through the defendant’s website, and printed the materials from the defendant’s website.63 The court considered the consultant’s testimony and, in granting a preliminary injunction, relied upon that evidence.64

• Relevance — The Florida Evidence Code defines “relevant evidence” as “evidence tending to prove or disprove a material fact.”65 The code further provides that evidence that is not relevant is not admissible.66 Under F.S. §90.403, relevant evidence is inadmissible if its probative value is substantially outweighed by either the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.67 In regard to social media, evidence can be relevant for a number of reasons: to impeach credibility, prove or disprove injuries, and demonstrate a witness’ bias. Florida courts have addressed the relevancy of social media evidence in two criminal proceedings, which provide insight to trial lawyers, not only for criminal proceedings but also civil cases.

For example, U.S. v. Castillo, 409 F. App’x 250 (11th Cir. 2010), involved a prosecution for illegal weapons possession. The government introduced evidence of a photograph from the defendant’s MySpace account, wherein he wore a ski mask, held an assault rifle, and displayed his middle finger.68 The district court admitted the MySpace photograph at trial, concluding that the website was probative of the defendant’s possession of the guns charged in the indictment, namely an AR-15, which was depicted in the photograph.69 The 11th Circuit held that the district court did not abuse its discretion in admitting the social media evidence.70

First, the 11th Circuit noted that website was probative of Castillo’s possession of the illegal firearms, especially when considered in light of the defendant’s defense that firearms found at his residence had belonged to someone else and that Castillo had not possessed them.71 Therefore, the website was probative of the issue at trial — whether Castillo knowingly possessed the illegal firearms.72 The 11th Circuit also rejected the defendant’s argument that the commentary accompanying the photograph was prejudicial because the judge’s limiting instruction maximized the probative value and minimized the prejudicial effect of the commentary.73 Therefore, the 11th Circuit deemed the social media evidence properly admitted.74

In a civil proceeding, counsel may use social media to locate photographs that refute the extent of a plaintiff’s injuries. For example, claimants may allege that they have been bedridden for several weeks, yet counsel may find pictures on Facebook showing the plaintiff participating in physical activities during the period in question. Under this scenario, the evidence would be relevant because it has a tendency to make a fact of consequence in the proceeding more or less probable, specifically the plaintiff’s claims of being bedridden as a result of the accident.75

• Demonstrating Witness Bias — Social media evidence may also be offered in order to evidence a witness’ bias or motive to lie. For example, in State v. Harden, 87 So. 3d 1243 (Fla. 4th DCA 2012), the Fourth DCA found that MySpace messages were relevant because they demonstrated intent or motive to be untruthful.76 Further, the Fourth DCA disagreed with the trial court’s conclusion that the probative value of the messages was substantially outweighed by the danger of unfair prejudice.77 This holding benefits trial lawyers because it establishes the various levels of relevancy served by social media evidence. Therefore, when counsel locates social media evidence, which at least tends to make it more likely that the witness is biased or has a motive to be untruthful, a court may admit the evidence for that limited purpose.

• Other Concerns — As previously explained, Florida courts have had limited opportunities to discuss the admissibility of social media evidence. In June 2013, the U.S. District Court for the Southern District of Florida considered the admissibility of Facebook comments during its ruling on a motion for summary judgment.78 The motion stemmed from a dispute between a Jersey Shore cast member, Michael Sorrentino — also known as “The Situation”— and apparel retailer Abercrombie & Fitch regarding a t-shirt that was sold by the retailer, which displayed the phrase “The Fitchuation,” and a subsequent press release issued by the retailer.79 In opposition to the motion, Mr. Sorrentino attempted to introduce Facebook comments in order to establish that Abercrombie’s press release was a publicity stunt.80 The court briefly remarked that the comments were inadmissible hearsay and, thus, could not be considered on a motion for summary judgment because they would be inadmissible at trial. The court ultimately granted Abercrombie’s motion for summary judgment, finding that neither the t-shirt nor the press release constituted trademark infringement, unfair competition, false advertising, nor misappropriation of likeness for commercial purpose.

Conclusion Social media is everywhere. Nearly everyone uses it. Litigants who understand social media — and its benefits and limitations — can immeasurably help their clients resolve disputes. If not properly researched, preserved, and authenticated, the best social media evidence is worthless. By working within the presently existing system of rules, taking special nuances into consideration, counsel can ensure that social media evidence sees the light of day in a courtroom.

8 Counsel and their staff should not set up fake user names to “friend” the opposing party. See Shane Witnov, Investigating Facebook: The Ethics of Using Social Networking Websites in Legal Investigations, 28 Santa Clara Computer & High Tech. L. J. 31 (2011) (exploring various ethical considerations in the context of Facebook investigations and numerous disciplinary decisions on the issue).

17Id. Facebook explains that a user’s UIDs and/or vanity URLs may be found in the uniform resource locator available in a browser displaying the account in question. For example, in the URL, “http://www.facebook.com/profile.php?id=ADMISSIBILITY,” “ADMISSIBILITY” is the UID.

36Davenport v. State Farm Mut. Auto. Ins. Co., No. 3:11-cv-632-J-JBT, 2012 WL 555759 at *2 n. 3 (M.D. Fla. Feb. 2012) (citing EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 436 n. 3 (S.D. Ind. 2010)) (“‘Tagging’ is the process by which a third party posts a picture and links people in the picture to their profiles so that the picture will appear in the profiles of the person who ‘tagged’ the people in the picture, as well as on the profiles of the people who were identified in the picture.”).

77Id. at 1249-1250; see alsoBarows v. State, 805 So. 2d 120, 122 (Fla. 4th DCA 2002) (explaining that an adverse party may discredit a witness by revealing bias, an interest in the outcome of the litigation, or a motive to lie).

Michael R. Holtis a litigation attorney with the firm Rumberger, Kirk & Caldwell, P.A. He received his B.A. from the University of Minnesota in 1994 and his J.D. from William Mitchell College of Law in 1997. Victoria San Pedro is a third-year law student at Stetson University College of Law and will join Rumberger, Kirk & Caldwell upon graduation in 2014. She received her B.A. from the University of Miami in 2010.